McDermott Will & Emery

New York NY

McDermott Will & Emery's New York office opened in 1988 through a local acquisition. The Firm now has more than 100 lawyers practicing from the New York office.

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Updates

Employment & Immigration

Executive order on workplace training for federal contractors and federal grant recipients released
USA | 04 November 2020

President Donald Trump recently issued an executive order which prohibits federal contractors and federal grant recipients from conducting any workplace training that implies, among other things, reverse discrimination. This requirement applies to all contracts and grants entered into after the order's effective date and takes effect 60 days after the order's effective date, potentially affecting many organisations that currently receive federal assistance through contracts, grants or other programmes.

Considerations for remote and in-person workers as school year commences
USA | 14 October 2020

As students begin a new school year, employers face a new challenge – employee leave and accommodation requests. With widespread remote learning and evolving legal obligations to provide paid leave to working parents, employers must navigate unique staffing challenges while complying with the Families First Coronavirus Response Act and other state and local leave laws.

New California law: notice of COVID-19 exposure in workplace and imminent hazards in worksites
USA | 07 October 2020

California Governor Gavin Newsom has signed Assembly Bill 685 into law, which will come into effect on 1 January 2021. The law creates an enforceable state-wide standard for how employers should handle potential exposure to COVID-19 and outbreaks in the workplace and expands the power of California's Division of Occupational Safety and Health to enforce this standard and take action to protect employees, including shutting down worksites deemed to be an 'imminent hazard' due to COVID-19 risk.

California COVID-19 Supplemental Paid Sick Leave Act effective immediately
USA | 30 September 2020

Employers with more than 500 employees nationally, and employers of healthcare providers and emergency responders previously exempted from the Families First Coronavirus Response Act requirements, must provide Californian employees with two weeks' supplemental paid sick leave for specified COVID-19 reasons. In addition to providing paid leave, the law requires employers to comply with urgent notice and posting requirements that are administratively burdensome.

DOL creates path for 401(k) plans to offer private equity investment options
USA | 23 September 2020

The US Department of Labour recently issued an information letter indicating that, in limited circumstances, it will allow defined contribution retirement plans (eg, 401(k) plans) to indirectly invest in private equity funds. Specifically, the information letter allows plans to offer their participants a professionally managed asset allocation fund with a private equity component as an investment option.

Off-duty conduct: COVID-19 and social media ranting – what's an employer to do?
USA | 02 September 2020

Many employers that reopened recently are now facing a new challenge – employee off-duty conduct. At stake are both workplace and customer safety, as well as the company's reputation. This article highlights different scenarios that employers are likely to face and provides tips on how they can practically navigate and mitigate any potential risks when responding to off-duty conduct issues.

SDNY vacates portion of DOL final rule on FFCRA
USA | 19 August 2020

The US District Court for the Southern District of New York recently struck down four parts of the US Department of Labour's final rule implementing the Families First Coronavirus Response Act (FFCRA). The FFCRA provides COVID-19-related sick leave and family leave to employees of businesses which have fewer than 500 employees. This article examines what this decision means for employers.

Illinois federal court dismisses ERISA claims against 401(k) fiduciaries
USA | 12 August 2020

The Employee Retirement Income Security Act (ERISA) requires plan fiduciaries to act prudently and loyally when making decisions about a plan. In a recent case, a federal district court held that the plaintiff's allegations about expensive record-keeping costs and imprudent investment options failed to give rise to an inference that the defendants had violated their ERISA obligations.

COVID-19 reopening plans
USA | 05 August 2020

States have imposed their own obligations on employers as part of their reopening plans. Employer requirements and best practices depend on the employer's locations of operation and type of business but, at a high level, there are general trends with respect to state-imposed employer obligations, including maintaining safe working conditions and monitoring employee health, undertaking sanitisation efforts, requiring the use of personal protective equipment and promoting telework.

COVID-19 safety plans: what employers need to know
USA | 22 July 2020

COVID-19 safety plans are a way for employers to demonstrate to their employees, the public (for public-facing businesses) and, in certain cases, state governments that they have considered the risks associated with COVID-19 in their respective workplaces and have developed a response to these concerns. This article answers FAQs for employers regarding COVID-19 safety plans, including whether state-specific guidance exists and when such plans should be updated.

Preparing for battle: how to build your litigation defences now
USA | 15 July 2020

The employment and business decisions made by employers under the spectre of the unprecedented COVID-19 pandemic are now being tested by opportunistic plaintiffs' lawyers. Employers of all sizes should expect a flood of employment litigation alongside ever-changing conditions, constantly updated guidance and, at times, conflicting state and local guidance. Litigation avoidance will require a team effort and proactive communication – both internally and externally.

Preparing for the unknown: how to anticipate and address future workplace problems
USA | 08 July 2020

The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. This article focuses on strategies for employers to anticipate and address future workplace problems which may arise once employees return to work.

Preparing your responses: how to tackle opening-day obstacles
USA | 01 July 2020

The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. This article focuses on preparedness for the opening-day obstacles that employers are likely to face as they bring their employees back to work.

Preparing your workforce: how to avoid legal landmines when bringing employees back
USA | 24 June 2020

The COVID-19 pandemic has put unprecedented strain on organisations of all sizes across all industries. The uncertainty of the new normal is leading some employers to consider extreme, and often unnecessary, new policies in anticipation of the eventual return to work. To properly navigate the complexities of these novel COVID-19 employment issues, employers need innovative but practical solutions.

Preparing your workplace: how to navigate safety mandates and recommendations
USA | 17 June 2020

With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can prepare their workplaces and navigate safety mandates and recommendations, including with regard to prioritising the safety of employees and customers, the use of face coverings in the workplace and the screening of employees.

Preparing to reopen: how to smoothly transition back to work
USA | 10 June 2020

With the restrictions imposed to combat the COVID-19 pandemic slowly loosening, businesses are thinking about returning to work and what this will look like in practice. While it will not be business as usual, this article highlights how employers can smoothly transition back to work, including through the use of transition teams and plans and by focusing on safety, staffing and a reopening timeline.

COVID-19: guide for US businesses
USA | 03 June 2020

With the COVID-19 pandemic continuing to affect every facet of life, businesses have much to consider. This article covers the provisions available to employers in the United States and the key questions that they are asking, including topics such as the Families First Coronavirus Response Act, furlough, access to the workplace, reductions in hours and employers' obligations concerning employees who are experiencing symptoms.

COVID-19 ate my homework – recent extensions and relief for retirement plans
USA | 27 May 2020

In recognition of the difficulties faced by retirement plan sponsors, participants and beneficiaries due to the COVID-19 pandemic, the Department of Labour, in conjunction with the Internal Revenue Service and the Department of the Treasury, recently issued guidance extending a number of retirement plan deadlines, including deadlines for many participant notices and benefit plan claims.

COVID-19: FAQs on practical considerations linked to working from home and privacy
USA | 20 May 2020

With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines the practical considerations linked to working from home and privacy that employers need to know.

COVID-19: FAQs on furlough and financial help for employers
USA | 13 May 2020

With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines what employers need to know about furlough and the financial help that is available for employers.

COVID-19: FAQs on employees experiencing symptoms and employee absences
USA | 06 May 2020

With rapid developments in local, state and federal guidance and law, the appropriate approach for each employer in relation to COVID-19 will vary depending on the nature of their work, the industries served and their location and size, among other considerations. This article outlines what employers need to know about employees experiencing symptoms and employee absences.

Open for business: how 'essential' businesses can keep their workplace healthy and safe
USA | 29 April 2020

Most states have issued some form of 'shelter in place' or 'stay at home' order to flatten the curve of COVID-19. As a result, many business operations have been temporarily suspended, unless the business is engaged in essential or critical infrastructure functions or supports businesses engaged in such functions. For businesses that are considered 'essential' and have employees still reporting to work, what steps can employers take to keep their workplace healthy and safe?

It only gets better with age: Supreme Court clarifies ADEA protections for federal employees
USA | 15 April 2020

Older federal employees just got a boost from the Supreme Court's recent interpretation of the causation standard under the federal sector provision of the Age Discrimination in Employment Act. To determine the prevailing standard, the court wrestled with the phrase "free from any discrimination based on age", which provides that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age… shall be made free from any discrimination based on age".

Up, up and away: increased penalties for employee benefit plans
USA | 01 April 2020

For 2020, legislation enacted in December 2019 dramatically increased penalties imposed by the Internal Revenue Code for late filing of certain employee benefit plan notices and reports. In addition, a final rule published by the Department of Labour made inflation adjustments to a wide range of penalties. This article compiles the penalty amounts that apply from 2020.

Top 10 things to know about new FLSA overtime calculations
USA | 25 March 2020

New, more employer-friendly regulations recently came into effect, determining how overtime pay is calculated under the Fair Labour Standards Act. The US Department of Labour (DOL) promulgated the regulations to "provide clarity and to better reflect the 21st-century workplace". The DOL's 2020 regulatory updates address whether certain forms of compensation can be excluded from an employee's regular rate of pay.

Coronavirus FAQs for US employers
USA | 18 March 2020

In today's global economy, COVID-19 raises serious concerns for healthcare providers and employers in all industries. For workers who are on the frontline caring for patients and developing diagnostics and vaccines, travelling for business or in close contact with individuals who travel or may have been affected, preparedness and prevention are crucial. This article answers FAQs regarding COVID-19.